POLL: 12- to15-year-olds can now have sex

According to a Government Gazette Notice released 7 July 2015, Parliament has amended the law so that the full range of sexual activities, including penetrative intercourse between two children aged 12 to 15, or between a child under 16 and another child over 16 where the age difference is less than two years, is no longer a crime. These changes to the Criminal Law (Sexual Offences and Related Matters) Amendment Bill were adopted by the National Assembly in June.

Previously, provisions in the Sexual Offences Act criminalised children who engaged in any consensual sexual activities, including French kissing. As it stood, any individual such as a parent, health worker, or teacher, who had knowledge of any consensual sexual activity between children aged 12 to 16, was required by law to report the children or face prosecution. If found guilty, the children would have their names included on the National Sex Offenders Register.

“Amendments to the bill are not about promoting or encouraging sexual activity between children,” explained Zane Dangor, special advisor to the Minister of Social Development RSA. He was part of a panel discussion on ‘Consent, Rights, and the Regulation of Childhood and Adolescent Sexuality in South Africa’, which was held at Wits University, in Braamfontein, on 15 July.

“Amendments to the bill are about the Constitutional Court’s decision, that the so-called ‘kissing law’ infringed on the constitutional rights of children,” said Dangor. “Criminalisation of sexual activities between consenting children is considered an unjustified intrusion of control into the private sphere of children’s personal relationships. Children have the right to seek pleasure. Children also have the right to dignity, privacy, freedom, and access to health services.”

Dangor continued, “It must be stressed, however, that amendments to the bill do not lower the age of consent.”

The age of consent in South Africa remains 16. ”If a child under the age of 16 consents to penetrative intercourse with another child over the age of 16 where the age difference is more than two years, both parties are guilty of a section 16 offence,” he concluded.

The State does have discretion on whether or not to prosecute cases of statutory rape and, in most cases, will exercise restraint. It was found that rather than conviction and sentencing, diversion usually occurred, which resulted in the child carrying the burden of a criminal record. The frequent exposure of the child to the criminal justice system through police and courts during this whole process was also deemed traumatic and harmful to the child’s development.

What do you think constitutes permissible adolescent sexual development? Is the age of consent just a social construct? Do children have too many rights these days?

Details: Department of Social Development